46 Kan. 189 | Kan. | 1891
Opinion by
This case was submitted to this court on briefs and oral argument, some time ago, and reversed. It is now here on a motion for a rehearing. When the case was before this court first, the question as to whether the plaintiff in error was privy to the judgment in the superior court of Shawnee county, in the case of Catherine Felitz v. The Topeka Water Supply Company, was not seriously argued, and did not receive the attention it was entitled to. The argument on the motion for rehearing made that the principal question in the case, and, considered in connection with the determination of the case in the superior court, the use made of the record in that case, and the trial of this case in the court below, we think it a very grave question. A careful examination of the question satisfies us that the contention of the defendant in error on this point is correct. The plaintiff in error is not privy to the judgment of the superior court in the case of Catherine Felitz against the Topeka Water Supply Company. (Freeman, Judg., § 162; Hunt v. Haven, 52 N. H. 170; Dickinson v. Lovell, 35 id. 16; Flanders v. Davis, 19 id. 139, 149; Starkie, Ev., 9th ed., *328.) The plaintiff in error
The plaintiff in error claims that the relation between himself and the water company, growing out of the settlement and dismissal of the case in the superior court, is that the water company was the purchaser under this last deed of the land in controversy from Hugo and Catherine Felitz, with notice of his rights under the contract of Catherine and Hugo Felitz with the plaintiff in error and J. W. Campbell. Now, while Root is not privy to the said judgment in the superior court, yet he had an undoubted right, in pursuance of his theory of the settlement and dismissal of said cause in the superior court, in an independent action for specific performance against the water supply company, as purchaser, with notice of his rights in the land in question, to introduce in evidence the record of the superior court to show that he had complied with the contract with Hugo and Catherine Felitz; and we think he had a right to further use said record as evidence, in connection with the parol testimony supplemental thereto and proof of the taking of a new deed by the company from Hugo and Catherine Felitz, to show a settlement of that case between the parties, whereby the company became at that time the purchaser of the land in question. Having introduced the contract under which he claimed, the record of the co'urt, and parol testimony supplemental thereto, to show a compliance on his part with the terms of the contract
It is recommended that the motion for rehearing be denied.
By the Court: It is so ordered.
Horton, C. J.: I have serious doubts about the decision in this case, but as a new trial is to be had, permitting the parties to litígate pro and con every question involved in the